The Privilege of Power: How state legislators are protected more than average citizens

January 27, 2015 at 12:23 AM CST - Updated July 2 at 6:00 AM

Article 4, Section 48 protects lawmakers from arrest for certain actions before, during and after the legislative session.

Legislator's license shows red print and the word "representative" about the DL number.

During certain months of the year, state lawmakers are allowed to get away with a few acts that average citizens would be cited for.

According to Article 4, Section 48 of the Mississippi Constitution, senators and representatives "shall, in all cases except treason, felony, theft or breach of the peace, be privileged from arrest" during the session of the legislature and for 15 days before and after.

While they may not be arrested on the spot, Mississippi has, at the least, a two-year statute of limitations, which means they could later be arrested and charged with the crime.

According to Hattiesburg lawyer Alex Ignatiev, a few examples of what lawmakers would not be arrested for during that time frame would include possession of marijuana, possession of alcohol in a dry county, vandalism and simple assault by threat, if it is not witnessed in public.

The 15-day time allotment before and after the session is believed to come from the days of horse and buggy, according to Ignatiev.

"What I suspect is that, at the time, 15 days was as long as it took to get from the furthest portion of the state of Mississippi to the Capitol," he explained.

Legislators are also protected from speeding violations, and one way they are recognized by law enforcement is their specially-printed drivers license, which has red print as opposed to black (see picture at right).

Mississippi Highway Patrol Lieutenant Johnny Poulos said the licenses are issued as "a courtesy" to legislators, and it is not required each of them carry the specially-printed license.

"They would come in and ask for it," said Poulos. "Some do, some don't."

Senator Billy Hudson (R- Dist. 45) said he was told to get his license changed from black to red when he first got elected, and his colleagues Sens. John Polk (R- Dist. 44), Joey Fillingane (R- Dist. 41) and Representative Toby Barker (R- Dist. 102), agreed.

"It's not really, truly meant to be used anywhere but during session," said Fillingane, explaining its use when lawmakers travel for emergency votes, special sessions and other instances that may hurry their travel.

However, Lt. Poulos said, if lawmakers were to be pulled over by law enforcement outside of the session, it is up to each officer how they respond to the situation.

"It's that officer's discretion, regardless of the insignia you have marking, whether or not they're going to issue the citation," he said.

Legislators, along with justice court judges, conference of Mississippi judges, governor's staff and members of the press, can request a decal to place next to their inspection sticker to identify them. Poulos said that, too, is used in a state of emergency, such as accessing an area that has been declared an area of devastation.

Attorney Ignatiev said the first time in recent history he remembers Sec. 48 coming into question was the 2014 session, when Sen. John Horhn (D- Dist. 36) was arrested for Driving Under the Influence. It happened two months before the legislative session, so Horhn was arrested, and still would have been if the incident had fallen under the constitutional time frame because DUI is considered breach of the peace.

For the state's constitution to be amended, the legislature must pass a concurrent resolution or a ballot initiative must be approved by voters, although lawmakers are given the option to create their own alternative if an initiative is approved for a ballot.

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